U.S. DOD Form dod-secnavinst-5370-7b
DEPARTMENT
OFFICE
OF
OF
THE
WASHINGTON,
D
THE
NAVY
SECRETARY
C
20350.1000
SECNAVINST 5370.7B
NIG-OOL
7 July 1998
SECNAV INSTRUCTION 5370.7B
From:
To:
Secretary of the Navy
All Ships and Stations
Subj :
MILITARY WHISTLEBLOWER PROTECTION
Ref:
(a) SECNAVINST 12700.2, Cooperation with the Office of
Special Counsel of the Merit Systems Protection Board
(b) Title 10, United States Code, Section 1034, the
Military Whistleblower Protection Act
(c) Title 5, United States Code, Section 552, the Freedom
of Information Act (FOIA), as implemented by
SECNAVINST 5720.42E, DON FOIA Program
(d) SECNAVINST 5430.92A, Assignment of Responsibilities to
Counteract Fraud, Waste, and Related Improprieties
Within the DoN
(e) SECNAVINST 5370.5A, DoD/Navy Hotline Program
(f) US Navy Regulations, 1990
(9) OPNAVINST 551O.1H, DON Information and Personnel
Security Program Regulation
(h) IGDG 7050.6DI, Guide to Investigating Reprisal and
Improper Referrals for Mental Health Evaluations
(NOTAL)
Encl:
(1) DoD Directive 7050.6, 12 Aug 95
(2) Rights Acknowledgment/Election Format
(3) Sample Military Whistleblower Protection Poster
1.
Pur~ose. To implement enclosure (1) within the Department of
the Navy (DON) and extend procedural rights to military members
who ask that the Naval Inspector General (NAVINSGEN) or the
Deputy Naval Inspector General for Marine Corps Matters (DNIGMC)
investigate their complaints of reprisal. This instruction is a
complete revision and should be reviewed in its entirety.
2.
Cancellation.
SECNAVINST 5370.7A.
SECNAVINST 5370.7B
7 Jut 19N
3.
A?mlicabilitv
a. The protections in this instruction apply to: active­
duty military personnel, both Regular and Reserve; midshipmen of
the Naval Academy and in the Reserve Officer Training Corps;
Reserve personnel when performing active or inactive duty for
training, or engaging in an activity directly related to the
performance of a Department of Defense (DoD) duty or function;
and all other members of the Armed Forces (as defined in
enclosure (l)) who, although not in the Navy or Marine Corps, are
assigned to a Navy or Marine Corps unit.
b. The restrictions in this instruction apply to: active­
duty military personnel, both Regular and Reserve; all DON
civilian personnel, including non-appropriated fund employees;
midshipmen of the Naval Academy and in the Reserve Officer
Training Corps; Reserve personnel when performing active or
inactive duty for training, or engaging in an activity directly
related to the performance of a Department of Defense (DoD) duty
or function; and all other members of the Armed Forces (as
defined in enclosure (1)) who, although not in the Navy or Marine
Corps, are assigned to a Navy or Marine Corps unit.
c. Reference (a) is applicable to DON civilian personnel
claiming whistleblow-er rep-r-isal.
4.
Background
a. The Military Whistleblower Protection Act (the Act), as
amended by section 531 of the FY95 Defense Authorization Act,
Pub.L. 103-337, October 5, 1994, provides that no person may
restrict a member of the armed forces from making a lawful
communication to a Member of Congress or an Inspector General
(IG). The Act also prohibits reprisal against military members
who :
(1) make “lawful” communications to Members of Congress
or an IG; or
(2) make, or prepare to make, communications (“lawful” or
“unlawful”) to a Member of Congress; a statutory or Service IG; a
member of a DoD audit, inspection, investigation, or law
enforcement organization; or “any other person or organization
(including any person or organization in the chain of command)
designated under to regulations or other established
administrative procedures for such communications,” provided the
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SECNAVINST 5370.7B
7 Jut 1990
member reasonable believes the information disclosed, or to be
(1) a violation of law or
disclosed, constitutes evidence of:
regulation, including those prohibiting sexual harassment or
unlawful discrimination; or (2) mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety.
b. The terms “lawful” and ‘lunlawful~tare not defined in the
Act or enclosure (l), which states policy and responsibility for
implementing reference (b). A communication may be ‘~unlawful”
because release of the information is prohibited by statute or
regulation, including information:
(1) that is classified; (2)
that is a trade secret or commercial in nature; or (3) that
concerns a personal privacy interest. The communication of
information which is exempt from release under reference (c) may
be unlawful.
c. The Act does not
responsibility for their
information contained in
cooperation may serve as
immunize military members from
own wrongdoing associated with the
the protected communication, but their
a matter in mitigation.
d. The Act and enclosure (1) give specific procedural rights
to a military member who alleges reprisal for making a “protected
communication,” but only if the member “submits” the complaint of
reprisal to the Inspector General, Department of Defense (DoDIG).
Consequently, enclosure (1) requires Service Inspectors General
(IGs) who receive allegations of reprisal to advise military
members, in writing, that “to obtain consideration of the matter
under (enclosure (l)), complaints of reprisal must be made ... or
forwarded to the (DoDIG).” It then requires the Service IGs to
forward those complaints to the DoDIG upon the written request of
the member.
e. Procedural rights afforded by the Act and enclosure
include:
(1)
(1) completion of the investigation within 90 days;
(2) a report format that requires a thorough review of
the facts and circumstances relevant to the allegations, relevant
documents acquired during the investigation, and summaries of
interviews conducted;
(3) provision of a redacted copy of the report of
investigation to the member;
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SECNAVINST 5370.7B
? J(I11$~$
(4) advice and assistance in filing a request for
correction of the member’s military record;
(5) provision of a copy of the report of investigation to
a board for correction of military records and IG assistance in
gathering further evidence the board may request;
(6) review of the board’s decision by the Secretary of
the Military Department;
(7) review of the Secretary’s decision by the Assistant
Secretary of Defense for Force Management Policy (ASD(FMP)); and
(8) after final action on the complaint, an interview,
when possible, with the military member to determine his or her
view on the disposition of the matter.
5. -*
Consistent with paragraph D of enclosure
DON policy that:
(l), it is
a. Members of the Armed Forces shall be free to make a
protected communication to a Member of Congress; an IG; a member
of a DoD audit, inspection, investigation, or law enforcement
organization; or any other person or organization (including any
person or organization in the chain of command as defined in
paragraph 6) designated under DON regulations or other
established administrative procedures to receive such
communications.
A variety of Navy regulations and instructions
contain provisions that permit or require DON personnel to report
suspected impropriety, or make other communications, to specified
superiors. For example:
(1) References (d) and (e) discuss the DON program to
combat fraud, waste and related improprieties, and place emphasis
on reporting suspected violations to proper authority. Reference
(d) defines proper authority to include the immediate superior of
the person submitting the report, his/her commander or commanding
officer, and the immediate superior of his/her commander or
commanding officer if either is apparently implicated.
(2) Reference (f) includes numerous articles indicating
the chain of command is the preferred method of reporting and
resolving the matters they address (e.g., articles 0820, 1024,
1114, 1115, 1137, 1143, 1150, 1151, and 1152).
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